The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim was not acceptable. A hearing was held on May 29, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker reported injuring the middle finger on his left hand on May 29, 2017 while performing weed trimming duties. In the Employer's Report filed May 30, 2017, the employer stated that the worker felt his left hand (middle finger) become swollen and "locked up." He reported his injury to his supervisor and went to seek medical treatment.

The worker attended at a walk-in clinic that same day, where he was diagnosed with acute flexor tendonitis/trigger finger and it was recommended that he do light duties at work. A Functional Abilities Form which was completed by the attending physician noted restrictions of "no overhead activity, no gripping or typing with left hand," to be reviewed in eight days.

The worker followed-up with his family physician on May 30, 2017, who diagnosed him with tenosynovitis of his left third finger and referred the worker to a plastic surgeon. The worker's family physician recommended modified duties for a period of two weeks, with the stated restriction of "Avoid repetitive forceful gripping with left hand. Able to drive motor vehicles."

The worker returned to the walk-in clinic for a follow-up appointment on June 7, 2017 and the attending physician diagnosed him with "improving flexor tenosynovitis." The physician provided him with a Functional Abilities Form which indicated he was able to resume his full regular duties on June 8, 2017.

In an initial discussion with the WCB on June 9, 2017, the worker advised that he first hurt his fingers earlier in the year, while he was on light duties sorting out nuts and bolts. He advised that he had to carry big pails of nuts and bolts which had thin wire metal handles and he was also using thinner gloves as he could not use his usual work gloves to hold the nuts and bolts.

On June 13, 2017, the worker provided a Functional Abilities Form from his family physician noting that he was able to resume modified duties on June 14, 2017, with the restriction of avoiding trimming for two weeks. It was noted that the worker was fit to "train driving tractors" and to use a steering wheel.

On June 16, 2017, a WCB medical advisor provided an opinion that confirmed the initial diagnosis of a left third digit trigger finger. The WCB medical advisor provided that the history for trigger finger is variable and that "Some will resolve easily, some with a steroid shot, and some go on to require pulley release surgery." The WCB medical advisor opined that the worker's diagnosed trigger finger could not be medically accounted for in relation to his reported job duties. It was noted that the described duties as reported would not meet the occupational risk factor criteria, and as the worker was right hand dominant, his left hand would likely not have been used much in operating a weed trimmer.

On June 28, 2017, the WCB advised the worker that his claim was not acceptable. The WCB determined that while the worker's job duty of trimming involved some repetition, it did not expose him to significant work-related factors, such as high force repetitive activity, which would result in the development of trigger finger.

On July 26, 2017, a worker advisor acting on behalf of the worker requested reconsideration of the WCB's decision by Review Office. The worker advisor stated that the worker disagreed with the WCB that his handling of a weed trimmer would not have resulted in the onset of trigger finger. The worker advisor further said that the worker's job duties of sorting nuts and bolts in February 2017 was hard on his fingers and his fingers started bothering him. As a result, the worker's fingers locked when he was performing the weed trimming, and he developed trigger finger.

On July 27, 2017, Review Office returned the worker's file to the WCB for further investigation with respect to the worker's job duties of sorting nuts and bolts.

Information was obtained from the worker, two foremen and the employer's return to work coordinator, and on August 3, 2017, the worker was advised by the WCB that based on a further review of his file and the information received, his claim was still not acceptable.

On September 11, 2017, the worker advisor again requested reconsideration of the WCB's decision by Review Office.

On December 4, 2017, Review Office determined that the worker's claim was not acceptable. Review Office was unable to find that the worker's job duties of lifting and dumping pails of nuts and bolts, then sorting them, would require a combination of strongly resisted gripping and/or grasping and repetition over a prolonged period of time. Considering the anatomical hand requirements and the time frame in which the worker performed these duties, Review Office was unable to relate the worker's left middle finger difficulties to the described job duties.

In relation to the weed trimming job duties, Review Office noted some discrepancies in the description of how the work was performed. It was noted that the worker had initially advised that as he was right-handed, he used his right hand for the trigger and controlled the rest of the trimmer with his left hand. In subsequent correspondence from the worker advisor, it was indicated that the worker used the trimmer in his left hand, with his third finger on the trigger and his right hand holding the handle/wand.

Review Office noted that the worker's advice that he experienced difficulties with his left middle finger prior to May 29, 2017, when he was sorting nuts and bolts, did not support that his symptoms were related to his job duties as a weed trimmer. Review Office stated that they were unable to find that the worker's job duties required strong resisted gripping or grasping for prolonged periods of time, and determined that the definition of an "accident" had not been met.

On December 13, 2017, the worker appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

      (a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured.

Worker's Position

The worker was assisted by an advocate who made a presentation to the panel. The worker responded to questions from the panel.

The worker's position was that he injured his left hand middle finger during the course of his employment and his claim should be accepted.

The worker's advocate noted that the diagnosis of trigger finger was not in dispute; the question was whether the worker's injury occurred in the workplace. The advocate submitted that the worker first reported his injury in May 2017, when his finger locked up while he was performing weed trimming duties. The advocate noted that although there had been some confusion arising out of a previous submission by the worker advisor as to whether the worker used his left or his right hand on the trigger, the worker had consistently indicated throughout that he used his right hand on the trigger, and held the handle of the weed trimmer with his left hand.

The advocate noted that it became evident subsequently that the worker's finger had been bothering him since March 2017. He had been on modified duties at that time owing to another injury. He was sorting pails of nuts and bolts, and after a few weeks, he began to feel a pain on his left palm below the middle finger. The worker attributed his injury to lifting and dumping the pails, with thin metal handles, which he did using his left hand in particular. The worker explained that although he felt pain, he had not reported that injury in March because his finger was not locking and he was hoping he would recover.

The worker's advocate noted that the worker's claim had been denied for two reasons: that the tasks were not enough to cause trigger finger; and there were inconsistencies in the information, particularly with respect to the time worked and the extent to which he was expected to carry pails of nuts and bolts. The advocate submitted that medical literature which had previously been submitted by the worker advisor and was on file responded to the first of these concerns and supported the worker's claim, and the advocate urged the panel to review that information.

With respect to the second concern relating to inconsistencies or discrepancies in the information on file, the worker's advocate stated that they hoped the employer could provide some explanation from the attendance records for the information they had provided with respect to absences in March 2017, as the worker recalled being at work every day that month. With respect to lifting and emptying pails of nuts and bolts, the worker further stated that contrary to what the employer had indicated, he had to do virtually all of the lifting and carrying himself, and the foreman had taken three pails for him on the first day only.

In conclusion, the worker's advocate submitted that there was nowhere else the worker's injury could have occurred, as he was not involved in any other activities outside of work which would have caused or contributed to his left hand middle trigger finger.

Employer's Position

The employer was represented by its Workers Compensation Coordinator. The employer's position was that the weight of evidence established that the worker's claim was not acceptable and the appeal should be dismissed.

It was submitted that the worker's diagnosed injury or condition, whether it was trigger finger or a strain/sprain injury, was not related to the worker's trimming duties or a specific duty or incident on May 26 or 29, 2017, or to the lifting, dumping and/or sorting of pails of nuts and bolts starting in February 2017.

The employer's representative submitted that the duties which the worker performed would not involve the repetitive, prolonged and forceful gripping that may be associated with trigger finger. He noted that the worker indicated he first performed the trimming duties on Friday, May 26, 2017, and was unable to continue with those duties by 10:00 a.m. on Monday, May 29, 2017. The employer's representative also suggested that the nature or extent to which the worker had to lift pails of nuts and bolts before sorting them, starting in February 2017, and whether this could medically account for an injury, appeared to be unclear. He further noted that in any event, the evidence showed that the worker did not perform these duties on a regular, recurring or sustained basis.

In conclusion, the employer's representative submitted that the worker did not perform the job duties in question long enough, and/or the duties were not prolonged or repetitive enough, to result in an acceptable claim for a repetitive strain or cumulative trauma-related injury.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to the successful, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment. The panel is not able to make that finding, for the reasons that follow.

The panel accepts that the worker has been diagnosed with trigger finger with respect to his left hand middle finger. The panel is unable to find, however, that the worker's job duties caused or contributed to the worker's trigger finger condition.

The panel is satisfied that the duration of the job duties as described by the worker, both the weed trimming and the lifting, carrying, dumping and sorting of pails of nuts and bolts, was not of sufficient length to cause an acute or repetitive strain injury to the worker's finger.

With respect to the worker's weed trimming duties, the evidence indicates that the worker performed these duties for a full day on Friday, May 26, 2017, then two hours on Monday, May 29, 2017. The evidence substantiates that the worker operated the weed trimmer with his left hand on the handle, and his right hand on the trigger. The panel accepts the worker's evidence that the weed trimmer would vibrate when it was running, but understands that the worker was wearing work gloves at the time which would have absorbed much of that vibration. Based on our review of all of the information which is before us, the panel is unable to find that the worker's operation of a weed trimmer, as described, for a period of less than two days, would have caused or aggravated his trigger finger condition.

With respect to the worker's modified duties sorting nuts and bolts, the panel carefully questioned the worker with respect to the nature those duties as well as the time he spent performing them. The worker stated that he felt that it was carrying, lifting and dumping the pails of nuts and bolts which would have caused his difficulties. The evidence indicated that the pails weighed 30 to 40 pounds each. It also showed that there were plastic grips over top of the metal handles, although the plastic was broken or missing on some of the handles.

The worker said a half-ton truck would bring the pails with the nuts and bolts for him to sort. He thought that on the first day, the truck brought maybe 10 to 12 pails. He would take the pails off the truck, carry them 10 to 15 feet to the sorting table, then empty the pails onto the table. The worker said that he used his left hand for carrying 95% of the time, and indicated that he would wear work gloves when carrying the pails. The worker thought that he would have sorted maybe three to four pails of nuts and bolts in a day. He acknowledged that it would therefore have been at least three working days before he would have needed another supply of pails.

In the course of the hearing, the employer's representative referred to and provided a copy of an attendance tracking list for the worker for 2017. The worker confirmed that he was fine with the panel using that list as a reasonable approximation of his absences from work in 2017. The panel notes that the attendance tracking list shows that the worker missed a substantial number of days of work in 2017 for various reasons.

With respect to the period of time when the worker was performing the modified duties sorting nuts and bolts, the attendance list indicates that the worker worked a full day on February 27, 2017, which was the first day he was performing those duties, then six hours on February 28. After that, the worker was absent from work for the next five workdays. Overall, the attendance tracking list shows that the worker missed a total of 18 full workdays in March 2017 alone, and indicates that he would have worked only three full workdays and two six-hour workdays that month. In these circumstances, the panel is unable to find that the worker's job duties of lifting and sorting pails of nuts and bolts would have caused or aggravated his trigger finger condition.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain an injury by accident arising out of or in the course of his employment. The claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of July, 2018